IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION, LOS ANGELES

Transcription

1 Case :0-cv-0-CAS-VBK Document Filed 0//00 Page of 0 Joseph L. Kish (SBN ) Synergy Law Group 0 West Randolph, th Floor Chicago, IL 0 Telephone:..00 Facsimile:..0 jkish@synergylawgroup.com Attorney for e0insight, Bargain Depot Enterprises, LLC, a.k.a. Bargaindepot.net, and Moniker Online Services, LLC IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION, LOS ANGELES WILLIAM SILVERSTEIN, an ) individual, ) Plaintiff, ) vs. ) e0insight, LLC, BARGAIN DEPOT ENTERPRISES, LLC, AKA ) BARGAINDEPOT.NET, DAVID ) LINHARDT, an individual, MONIKER ONLINE SERVICES, LLC, And DOES ) -0; inclusive, ) Defendants ) AND RELATED COUNTERCLAIMS ) Case No.: cv0- CAS (VBKx) OPPOSITION TO PLAINTIFF S ANTI-SLAPP MOTION TO STRIKE COUNTERCLAIMS PURSUANT TO CCP.. Date: April, 00 Time: :00 a.m. Courtroom: on nd Floor

2 Case :0-cv-0-CAS-VBK Document Filed 0//00 Page of 0 Table of Contents A. Introduction... B. Legal Standards... C. Plaintiff s Motion Should Be Stricken For Failure To Comply With Local Rule -. D. Plaintiff s Motion To Strike Should () Be Denied As To The Defamation Claims Because The Evidence Before The Court Is Sufficient To Support A Judgment In Favor Of e0 and BDE And () Because Certain Statements Are Not Subject To The Anti-SLAPP Statute And () Are Not Privileged..... E0 Is Not A Public Figure..... The Statements Made By Plaintiff Stating that e0 And BDE Send Spam And Send Illegal Spam Are Defamatory And e0 And BDE Have Sufficient Evidence To Prevail On Their Counterclaim.... Plaintiff s Labeling Of e0 As A Liar Is Not Privileged And Is Defamatory.... E. Plaintiff s Motion Should Be Denied As To E0 s and BDE s Abuse Of Process Claim In Light Of Their Agreement To Voluntarily Dismiss This Claim... F. Plaintiff s Counsel s Request For Attorney s Fees Is Not Warranted... G. Conclusion... Cases Christian v. Mattel, Inc., F.d, (th Cir. 00)... Dial Corp. v. MG Skinner & Assocs., 0 Fed. Appx.,, 00 U.S. App. LEXIS * (th Cir. 00)... Griffith v. Davis, F.R.D.,, U.S. Dist. LEXIS * (th Cir. )... Hall v. Time Warner, Inc., Cal. App. th,, Cal. Rptr. d, 0 (Cal. App. nd 00)... i

3 Case :0-cv-0-CAS-VBK Document Filed 0//00 Page of 0 Hutchinson v. Proxmire, U.S.,, S. Ct., ()... Kang v. PB Fasteners, 00 U.S. App. LEXIS * (th Cir. 00)... Milkovich v. Lorain Journal Co., U.S.,, S. Ct., 0 (0)... Moyer v. Amador Valley J. Union High Sch. Dist., Cal. Rptr., Cal. Rptr. (Cal. App. st 0)... Reader s Digest Ass n v. Superior Court, Cal. d, (Cal. )... Rodriguez v. Panayiotou, F.d, 00 U.S. App. LEXIS (th Cir. 00)... Rothman v. Jackson, Cal. App. th,, Cal. Rptr. d, (Cal. App. nd )... Shively v. Bozanich, Cal. th 0,, 0 P.d, (Cal. 00)... Silberg v. Anderson, 0 Cal. d 0,, P.d, (Cal. 0)..., Zamos v. Stroud, Cal. th, -, P.d 0, 0 (Cal. 00)... Statutes Cal. Code of Civil Procedure... Cal. Code of Civil Procedure.(b)()... Cal. Code of Civil Procedure.(f)... Rules Fed. R. Civ. P.... Local Rule -... passim ii

4 Case :0-cv-0-CAS-VBK Document Filed 0//00 Page of 0 Defendants and Counter-Plaintiffs, e0insight, LLC (e0), and Bargain Depot Enterprises, LLC aka BargainDepot.net (BDE), through their attorneys of record, oppose Plaintiff William Silverstein s (Plaintiff) Anti-SLAPP motion as follows: A. Introduction. Plaintiff believes that he can file a lawsuit supported by no evidence, run this Court and the Defendants through the litigation ringer, and then hide behind California s anti-slapp statute when he is called out to answer for his actions. Plaintiff s behavior in this lawsuit cannot be what the California Legislature contemplated when it enacted the anti-slapp statute to protect legitimate constitutional rights to petition. Far from being a strategic lawsuit against public participation, e0 and BDE filed its abuse of process counterclaim only after determining that Plaintiff never had any evidence to bring of the claims in Counts I-V. (They also chose to bring their defamation claims at this time since the statements on which they are based relate to the occurrences contained in Plaintiff s First Amended Complaint.) e0 and BDE s claims were not filed frivolously as Plaintiff contends and, ironically, Plaintiff does not support his motion with any evidence of the s that would have obviated the Counterclaim in the first place. Plaintiff s

5 Case :0-cv-0-CAS-VBK Document Filed 0//00 Page of 0 motion to strike the Counterclaim should be stricken for failure to comply with Local Rule - or should be denied in its entirety. B. Legal Standards. The anti-slapp statute, provides in relevant part: A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. See Cal. Code of Civil Procedure.. The moving party (here Plaintiff) has the initial burden to show that the cause of action aris[es] from [an] act in furtherance of the [Plaintiff's] right of petition or free speech. See Zamos v. Stroud, Cal. th, -, P.d 0, 0 (Cal. 00) (internal citations omitted). If Plaintiff carries this burden, the burden shifts to the opposing party [here e0 and BDE] to demonstrate the probability that the plaintiff will prevail on the claim. Id. e0 and BDE must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. Id. e0 s and BDE s showing of facts must consist of evidence that would be admissible at trial. Hall v. Time Warner, Inc., Cal. App. th,, Cal. Rptr. d, 0 (Cal. App. nd 00). The trial

6 Case :0-cv-0-CAS-VBK Document Filed 0//00 Page of 0 court cannot weigh the evidence Id. The court, in making this determination, shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. Cal. Code of Civil Procedure.(b)(). C. Plaintiff s Motion Should Be Stricken For Failure To Comply With Local Rule -. Local Rule - states in pertinent part: counsel contemplating the filing of any motion shall first contact opposing counsel to discuss thoroughly, preferably in person, the substance of the contemplated motion and any potential resolution the conference shall take place at least twenty (0) days prior to the filing of the motion. If the parties are unable to reach a resolution which eliminates the necessity for a hearing, counsel for the moving party shall include in the notice of motion a statement to the following effect: This motion is made following the conference of counsel pursuant to L.R. - which took place on (date). The only exception to the twenty (0) day stay period is for motions that are required to be filed within a specific period of time proscribed by the Federal Rules of Civil Procedure. That exception is inapplicable in this case because California s anti-slapp statute, not the Federal Rules, proscribe the operative time frames. See Cal. Code of Civil Procedure.(f).

7 Case :0-cv-0-CAS-VBK Document Filed 0//00 Page of 0 Here, Mr. Silverstein sought to represent himself initially with respect to the Counterclaim and specifically sought to file an anti-slapp motion. Mr. Silverstein attempted to meet and confer with Defendants counsel, Joseph L. Kish, notwithstanding that he was represented by counsel and there had not been a substitution of representation. (See Declaration of Joseph L. Kish, Exhibit A, (Kish Dec.) at.) At this time Mr. Kish did not understand that Plaintiff and his attorney were going to attempt to split representation and therefore went ahead in good faith with discussions with Mr. Silverstein. (See Kish Dec. at.) Even though these discussions lasted approximately -/ hours over the course of two days, there was no meaningful conferencing as contemplated by this Court s local rules because Mr. Silverstein did not have an understanding of admissible evidence and kept insisting that Mr. Kish did not understand how s worked. (See Kish Dec. at.) Mr. Silverstein promised that instead of submitting any actual unredacted s, he would provide a technical explanation why the s he previously provided established Defendants liability. (See Kish Dec. at.) The technical explanation was never been provided by Mr. Silverstein or his attorney Mr. Nejadpour did not object to these discussions going forward and raises no argument now that they were inappropriate even though Mr. Silverstein was, and remains, represented by Mr. Nejadpour.

8 Case :0-cv-0-CAS-VBK Document Filed 0//00 Page of 0 and has never been supplied since. (See Kish Dec. at.) As a result this meet and confer was never completed. (See Kish Dec. at.) In the meantime, the Court denied Plaintiff s request to bifurcate representation and struck the anti-slapp motion filed by Plaintiff. (ECF Doc. No. 0). Mr. Kish then advised Plaintiff s counsel that any prior communications with Mr. Silverstein directly did not satisfy the requirements of L. R. - in the event Plaintiff contemplated filing any new motion. (See Kish Dec. at, Exhibit.) Mr. Kish further advised Plaintiff s counsel that if he intended to file an anti- SLAPP motion, there would need to be a meet and confer in advance of the filing. (See Kish Dec. at, Exhibit.) Contrary to the representations made by Plaintiff s counsel, no actual meet and confer pertaining to this motion with Plaintiffs counsel took place until March, 00. (See Kish Dec. at.) During these discussions, Mr. Kish reiterated the need for the actual un-redacted s containing all header information, which would be the only admissible evidence that could support Plaintiff s case and would obviate an abuse of process claim. (See Kish Dec. at.) During this meet and confer there were also discussions about both parties dropping certain Mr. Kish informed Plaintiff s counsel that if the s were produced it was likely that the abuse of process claim would be dismissed if the s established either e0 s or BDE s liability. (See Kish Dec. at.)

9 Case :0-cv-0-CAS-VBK Document Filed 0//00 Page of claims so that this case could move forward without unnecessary motion practice and the discovery stay that automatically accompanies the filing of an anti-slspp motion to strike. (See Kish Dec. at.) In a second telephone conference later this same day the attorneys were joined by Mr. Silverstein who again promised to provide the technical explanation pertaining to the s. (See Kish Dec. at.) Instead of furthering these discussions, Plaintiff s counsel filed this motion 0 just eight () days later on March, 00. (ECF Doc. No. ). Even if this Court accepts the representations made by counsel for Plaintiff regarding the dates of the meet and confer (February, 00 and March, 00), these representations serve as an admission that no meet and confer took place at least twenty (0) days in advance of the filing of the pending motion. The Ninth Circuit has recognized the trial court s discretion in striking as untimely any motions filed in violation of L. R. -. See Kang v. PB Fasteners, 00 U.S. App. LEXIS * (th Cir. 00) (District Court did not abuse its discretion in striking [the] motion to amend [the] complaint for failure to comply with [] local rule [-]. [Plaintiff s] attorney informed opposing counsel of his intention to amend the complaint only ten days before filing the motion, thereby Coincidentally, this was the same day on which Mr. Kish informed Plaintiff s counsel he was unavailable for any proceedings. (See Kish Dec. at.)

10 Case :0-cv-0-CAS-VBK Document Filed 0//00 Page of 0 violating Local Rule -, which requires counsel to meet and confer with opposing counsel at least twenty days prior to filing any motion that, under the Federal Rules of Civil Procedure, need not be filed within a specified period of time.) (See also Dial Corp. v. MG Skinner & Assocs., 0 Fed. Appx.,, 00 U.S. App. LEXIS * (th Cir. 00) ( first two motions were struck for failure to comply with Local Rule -) and Christian v. Mattel, Inc., F.d, (th Cir. 00) ("The district court has considerable latitude in managing the parties' motion practice and enforcing local rules that place parameters on briefing."). Inexplicably, Plaintiff here did not allow the 0 day meet and confer process to mature. As Plaintiff knows, e0 and BDE were considering narrowing its claims against Plaintiff, and e0 and BDE thought Plaintiff was doing the same. e0 and BDE were also hoping, perhaps with unwarranted optimism, that as part of the meet and confer process Plaintiff would finally either produce the s that purportedly give rise to this action or admit they do not exist. Plaintiff s failure to follow the local rules is not merely form over substance. As late as March, Plaintiff has been in technical default since February, 00 because he has never filed an answer or a Rule motion, but e0 and BDE never threatened to move for a default judgment and thus there was no need for Plaintiff to file the anti-slapp motion on March, 00.

11 Case :0-cv-0-CAS-VBK Document Filed 0//00 Page of 0 00 e0 and BDE were attempting to narrow the claims before the Court in order to move this case along without the need for this motion or its attendant discovery stay. E0 and BDE informed Plaintiff it would voluntarily dismiss the abuse of process claim. (See Kish Dec. at, Exhibit.) E0 and BDE also sought an agreement whereby the Defamation claims of both Plaintiff and e0 and BDE would be mutually dismissed. As of the filing of this opposition, Plaintiff has not agreed. Regardless, the Court should strike the pending motion because Plaintiff failed to comply with L. R. -. D. Plaintiff s Motion To Strike Should () Be Denied As To The Defamation Claims Because The Evidence Before The Court Is Sufficient To Support A Judgment In Favor Of e0 and BDE And () Because Certain Statements Are Not Subject To The Anti-SLAPP Statute And () Are Not Privileged. The Counterclaim identifies four separate defamatory statements by Plaintiff. (See Counterclaim, ECF Doc. No. at - Exhibits A-D). Specifically, Plaintiff () stated e0 and BDE were spammers, ( and ) twice implied that e0 and BDE were involved in sending illegal spam by publishing that e0 and BDE were being sued for sending illegal spam and () called e0 liar. The defamatory statements regarding spammers and illegal spam were made on a Usenet bulletin board and made public for anyone to read. e0 and BDE acknowledge that these defamatory statements were an act in furtherance of

12 Case :0-cv-0-CAS-VBK Document Filed 0//00 Page of 0 Plaintiff s right of free speech. In addition to the defamatory statements referenced above, Plaintiff has posted numerous other statements regarding E0 on a Usenet bulletin board. (See Linhardt Dec. at and.) Many of these statements are also defamatory and are expected to be analyzed in detail during discovery associated with the counter claims. However, because e0 and BDE can demonstrate that the counterclaim is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment Plaintiff s motion should be denied.. E0 Is Not A Public Figure. Plaintiff cites to various cases for the proposition that Counter-Plaintiff is a limited purpose public figure. However, contrary to Plaintiff s representations, e0 and BDE are not a public figure because they did not thrust [themselves] into the forefront of particular public controversies. Reader s Digest Ass n v. Superior Court, Cal. d, (Cal. ). Rather, e0 and BDE only responded to a tide of negative postings on a message board containing defamatory statements that e0 engaged in spamming. (See Linhardt Dec. ( Linhardt Dec. ), Exhibit B at.) and is therefore not a limited purpose public figure. Hutchinson v. Proxmire, U.S.,, S. Ct., (). Here, Plaintiff made defamatory statements concerning e0 and e0, rather than responding in kind, asked Plaintiff for his address to ensure that Plaintiff did

13 Case :0-cv-0-CAS-VBK Document Filed 0//00 Page of 0 not receive any unwanted s. (ECF Doc. No. - at.) Plaintiff refused to provide his address and the only way e0 could communicate with Plaintiff was through postings on the message board. (See Linhardt Dec. at.) Plaintiff cannot be allowed to draw e0 into communications and then claim as a defense that the communications are privileged. The Supreme Court has held that in situations like this, plaintiff cannot, by [Plaintiff s numerous postings] create [his] own defense by making [e0 and BDE] a public figure. Id. Even if e0 is determined to be a limited purpose public figure, Plaintiff acted with malice and the defamatory statements are not protected. Plaintiff has never produced a single piece of evidence demonstrating that e0 or BDE sent any to Plaintiff. As demonstrated by the motion for summary judgment filed by Defendants, the purported evidence possessed by Plaintiff does not trace back to e0 or BDE. Therefore, the defamatory statements were false and Plaintiff knew or should have known that they were false.. The Statements Made By Plaintiff Stating that e0 And BDE Send Spam And Send Illegal Spam Are Defamatory And e0 And BDE Have Sufficient Evidence To Prevail On Their Counterclaim. Under California law, a written communication that is false, that is not protected by any privilege, and that exposes a person to contempt or ridicule or certain other reputational injuries, constitutes libel. Shively v. Bozanich, Cal.

14 Case :0-cv-0-CAS-VBK Document Filed 0//00 Page of 0 th 0,, 0 P.d, (Cal. 00). As demonstrated below, all of the statements on which e0 and BDE s libel claim is based fall squarely within this definition e0 and BDE are prepared to provide the following evidence to support their libel claims. e0 and BDE deliver their messages to their customers at addresses provided by their customers or from partner sites where individuals optin to receive from e0 and BDE. (See Linhardt Dec. at.) e0 and BDE are hired by and partner with companies that wish to market their products or services using the internet. (See Linhardt Dec. at.) e0 s and BDE s customers sign up at websites owned by e0 and BDE or at websites owned by e0 and BDE marketing partners. (See Linhardt Dec. at.) e0 s and BDE s custom and practice is to only send messages to persons who first sign up or opt-in and provide their address to e0 and BDE or to one of e0 and BDE marketing partners. (See Linhardt Dec. at.) e0 and BDE attempt to verify the desire by such customers to receive s utilizing a double opt-in process. This process involves the customer requesting an , followed by e0 and BDE sending a confirmatory allowing the customer to affirm or terminate its decision to receive marketing . (See Linhardt Dec. at.) Here, the labeling e0 and BDE as spammers diminishes their reputations because it implies that e0 and BDE are sending unwanted .

15 Case :0-cv-0-CAS-VBK Document Filed 0//00 Page of 0 (See Linhardt Dec. at.) Labeling e0 and BDE as spammers diminishes the value of their recipient lists because it conveys to their potential clients that the lists maintained by e0 and BDE are not composed of addresses of individuals opting in to receive s. (See Linhardt Dec. at.) Labeling e0 and BDE as Illegal spammers diminishes their reputations because it implies that e0 and BDE are violating applicable state and federal laws. (See Linhardt Dec. at.) Labeling e0 and BDE as illegal spammers diminish the value of their recipient list because it conveys to their potential clients that e0 and BDE are violating applicable state and federal laws. (See Linhardt Dec. at.) Plaintiff made these defamatory statements in the NANAE Usenet group. The NANAE is a Usenet group. NANAE is short for "news.admin.netabuse. ." The description of the group is, "Discussion of abuse of systems." systems administrators use NANAE to report, investigate and communicate with other members of the community regarding abuse, i.e., "spam" issues. systems administrators use NANAE to combat spam and to evaluate mailers reputation and business practices. systems administrators sometimes act on the information in NANAE by adding IP addresses and domain names to blocklists which are used for blocking or filtering inbound messages. (See ECF Doc. No. - at.)

16 Case :0-cv-0-CAS-VBK Document Filed 0//00 Page of 0 Finally, in Mr. Linhardt s opinion, based on years of industry experience, no one distinguishes the label spam from illegal spam, or spamming from illegal spamming, and these terms are used synonymously to and are perceived as meaning that one so labeled is engaging in illegal activity. (See Linhardt Dec. at.) e0 and BDE are prepared to show that Plaintiff s labeling of e0 and BDE as illegal spammers and other derogatory terms, have caused direct damages to e0 s and BDE s ability to generate revenue through their legitimate marketing practices. e0 and BDE clearly demonstrate the probability that they will prevail on this part of their defamation claim. The counterclaim is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment. Plaintiff s motion should be denied.. Plaintiff s Labeling Of e0 As A Liar Is Not Privileged And Is Defamatory. Plaintiff s fourth defamatory statement, that Silverstein decided to [sic] this lawsuit when E0 filed suit against individuals calling E0 and Linhardt spammers. I don't like bullies or liars, said Mr. Silverstein when he said that E0 and Linhardt needs [sic] to be sued." is not privileged and is defamatory. Like the other defamatory statements, Plaintiff does not deny making the statement. Rather, Plaintiff claims that the communication is privileged because it

17 Case :0-cv-0-CAS-VBK Document Filed 0//00 Page of 0 was made to his attorney. (See ECF Doc. No. at p. ) Plaintiff seemingly is attempting to invoke the attorney client privilege. However, waiver may occur if the client permits his attorney to disclose the communication to third parties. Griffith v. Davis, F.R.D.,, U.S. Dist. LEXIS * (th Cir. ). Here, the defamatory statement was published on the website of Plaintiff s attorney. (See Linhardt Dec. at.) Plaintiff does not provide any evidence nor does he even contend that he did not consent to this publication. Moreover, Plaintiff and his attorney share office space and Plaintiff acts as computer expert for Nejadpour & Associates. (See Kish Dec. at, Exhibit.) It is simply unimaginable that Plaintiff was unaware of this statements public posting. The statement that e0 and BDE are liars is provably false and therefore subject to a defamation action. Specifically, the Supreme Court has held that the connotation that [plaintiff lied] is sufficiently factual to be susceptible of being proved true or false. Milkovich v. Lorain Journal Co., U.S.,, S. Ct., 0 (0). Circuit has followed Milkovich in recognizing that statements are actionable unless no reasonable fact finder could conclude that [they] imply a provably false factual assertion. Rodriguez v. Panayiotou, F.d, 00 U.S. App. LEXIS (th Cir. 00) citing Moyer v. Amador Valley J. Union High Sch. Dist., Cal. Rptr., Cal. Rptr. (Cal. App. st 0).

18 Case :0-cv-0-CAS-VBK Document Filed 0//00 Page of 0 Here, Plaintiff has no answer for the Supreme Court s ruling that calling someone a liar is actionable. Rather, and without any supporting evidence, Plaintiff contends the statement is true. The fact that Plaintiff thinks the statement is true is factual issue he needs to prove, based on evidence, as an affirmative defense in this case, not boldly assert, either in support of this motion or at trial. Calling e0 a liar is a statement of fact that is provably true or false, and the proper basis for e0 s defamation claim. Finally, Plaintiff argues that even if the statement is false, it is protected by the litigation privilege. Plaintiff provides no evidence or legal authority why this would be the case. Statements published to non-participants in an action are not covered by the litigation privilege. Rothman v. Jackson, Cal. App. th,, Cal. Rptr. d, (Cal. App. nd ). ( Statements to nonparticipants in the action are generally not privileged under section, subdivision (b), and are thus actionable unless privileged on some other basis. ) Moreover, the litigation privilege only applies to any communication () made in judicial or quasi-judicial proceedings; () by litigants or other participants authorized by law; () to achieve the objects of the litigation; and () that have some connection or logical relation to the action. Silberg v. Anderson, 0 Cal. d 0,, P.d, (Cal. 0). Here, the statement that e0 is a liar was not made to achieve the objects of the litigation and did not have any connection or logical

19 Case :0-cv-0-CAS-VBK Document Filed 0//00 Page of 0 relation to the action. Calling e0 a liar was related to another matter and not in any way related the claims Plaintiff was making against e0 at the time of the statement. Plaintiff s defamatory statement that e0 is a liar is provably false, not protected by any privilege and therefore not subject to being stricken under the anti-slapp Statute. Plaintiff s motion should be denied. E. Plaintiff s Motion Should Be Denied As To E0 s and BDE s Abuse Of Process Claim In Light Of Their Agreement To Voluntarily Dismiss This Claim. e0 and BDE recognize that its abuse of process claim, unlike its defamation claims, might be subject to California s litigation privilege after cases like Silberg v. Anderson, 0 Cal. d 0, (Cal. 0), which suggests that only malicious prosecution cases are immune from the litigation privilege. The limitations suggested in Silberg v. Anderson are extremely onerous given the facts of this case and e0 and BDE respectfully thought that it should be able to apply for some form of relief short of waiting for its malicious prosecution claim to mature. Even though this Court allowed the Counterclaim to proceed, ruling that the abuse of process claim was not futile, e0 and BDE have determined that the better course of action is to dismiss its abuse of process claim, wait for its malicious prosecution claim to mature and, in the meantime, avail itself of other

20 Case :0-cv-0-CAS-VBK Document Filed 0//00 Page 0 of 0 remedial devices to combat Plaintiff s abusive tactics. This Court should not, however, allow Plaintiff to seek refuge in the anti-slspp statute by claiming entitlement to any attorneys fees. Plaintiff should have allowed for the completion of the 0 day meet and confer process. Plaintiff could have simply moved to dismiss the abuse of process claim under Fed. R. Civ. P.. Then, of course, Plaintiff would have had to respond to the discovery that has been previously propounded by Defendants. F. Plaintiff s Counsel s Request For Attorney s Fees Is Not Warranted. Plaintiff counsel s claim for attorneys fees is neither warranted nor supported by the declarations accompanying this motion. Plaintiff terminated the 0 day meet and confer process after only eight days with no notice to e0 or BDE. That meet and confer was leading to a possible resolution that would have obviated this motion being filed. Even after this motion was filed e0 and BDE continued to attempt to narrow the issues down so that this motion was unnecessary but Plaintiff insisted on the payment of $,00.00 for unwarranted and unearned attorney s fees to do so. (See Kish Dec. at, Exhibit.) Plaintiff s meet and confer was far from what could be considered a good faith attempt by Plaintiff to discuss thoroughly the substance of the contemplated motion and any potential resolution.

21 Case :0-cv-0-CAS-VBK Document Filed 0//00 Page of 0 Moreover, the amounts sought by Plaintiff are dubious on their face. When Plaintiff attempted on his own to file an anti-slapp motion ( anti-slapp ) he stated that he had been assisted by an attorney other than counsel prosecuting the pending motion. (See Kish Dec. at 0, Exhibit.) Yet current counsel for Plaintiff attached a declaration to the pending anti-slapp motion ( anti-slapp ) representing that he spent five hours preparing the anti-slapp motion. (See ECF Doc. No. - at.) The two motions are virtually identical with the only differences being the dates and signatories, and current counsels request for attorney s fees. The near identical nature of the two motions can be easily gleaned from a comparison of both versions. Mr. Kish did a Deltaview comparison and attaches to his Declaration a copy of Mr. Silverstein s anti-slapp motion so the Court can see the near identical nature of the motions. (See Kish Dec. at, Exhibit.) Based on the very minor changes to the motion, counsel for Plaintiff cannot credibly represent that those changes took five hours to make. In addition, Plaintiff seeks fees for opposing, unsuccessfully, e0 and BDE s request for leave to file their Counterclaim. Such a request is nowhere provided for in the anti-slapp statute. Plaintiff also seeks fees for replying to this opposition and attending a hearing even though Plaintiff terminated the 0 day meet and confer process unilaterally and with no notice to e0 and BDE. This is just the most recent example of Plaintiff rewriting the rules by which everyone

22 Case :0-cv-0-CAS-VBK Document Filed 0//00 Page of 0 else, including this Court, is supposed to operate. Plaintiff should not be rewarded for doing so. G. Conclusion. If this motion is granted e0 and BDE are essentially powerless to counteract the way Plaintiff has strung them along in this case, which by all accounts, is demonstrably without merit. This motion represents just the latest example of Plaintiff s tactics, with Plaintiff hiding behind California s anti-slapp statute, the attorney client privilege and litigation privilege, which currently serves his purpose, while ignoring this Court s Local Rules, which currently do not. This Court should strike Plaintiff s motion to strike because it violates L.R. -. Alternatively, the Court should deny Plaintiff s motion in its entirety. e0 and BDE have demonstrated that they can state and substantiate legally sufficient claims as to the defamation cause of action. Moreover, e0 and BDE will voluntarily dismiss the abuse of process claim. No attorneys fees are warranted under these circumstances. Dated March, 00 /s/ Joseph L. Kish Joseph L. Kish Attorney for Defendants e0 Insight and Bargain Depot Enterprises.